Bombay High Court
Hari Shankar Singhania (Now ... vs Dr. Gaur Hari Singhania (Now ... on 6 May, 2016
Bench: K.R. Sriram
1/39 N.1786.2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE NO.1786 OF 2015
IN
EXECUTION APPLICATION NO.2006 OF 2015
Bharat Hari Singhania & Ors. ....Judgment Creditors
V/s.
Sushila Singhania & Ors. ....Judgment Debtors
WITH
NOTICE NO.1653 OF 2015
IN
EXECUTION APPLICATION NO.1913 OF 2015
Madhupati Singhania
V/s.
ig ....Judgment Creditor
Bharat Hari Singhania & Ors. ....Judgment Debtors
----
Mr. Dinyar Madon, senior advocate a/w. Mr. Sairam Subramanian i/b.
Khaitan & Co. for the applicant/claimant in N/1786/2015.
Mr. Nirman Shah i/b. Rakesh Jain for the claimant/applicant in
N/1653/2015.
Mr. Virag Tulzapurkar, senior advocate a/w. Adv. Saumya Srikrishna
i/b. Wadia Ghandy & Co. for the judgment debtor no.10.
Mr. Zal Andhyarujina a/w. Adv. Naseem Patrawala i/b. Malvi
Ranchoddas & Co. for the respondent nos.2,3,5,6 & 8.
Mr. S.U. Kamdar, senior advocate i/b. S.M. Sabrad for the respondent
nos.12 & 13..
----
CORAM : K.R.SHRIRAM,J
RESERVED ON : 05.04.2016
PRONOUNCED ON : 06.05.2016
P.C.:-
1 The judgment creditors in execution application no.2006 of
2015, who, henceforth are referred to as Calcutta Group for the sake
of convenience, were the claimants in an arbitration before Mr. Justice
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S.N. Variava (Retd.) as Sole Arbitrator. The judgment debtors to this
execution application were the respondents in the arbitration and
participated as two separate groups. The judgment debtor nos.1 to 7,
who hereinafter are referred to as Kanpur Group, were respondent
nos.1 to 9 in the arbitration and the judgment debtors nos.8 to 14,
who hereinafter are referred to as Bombay Group, were respondent
nos.10 to 16 in the arbitration. Respondent nos.1 and 4 in the
arbitration have since expired. In the arbitration the claimants sought
distribution of the assets of the erstwhile partnership firm of M/s. J.K.
Bankers (Juggilal Kamlapat Bankers). The Ld. Arbitrator passed an
award dated 4th August, 2008 to which certain minor modifications
were carried out on 12th September, 2008 (the said award) and
distributed the properties. The properties were distributed as under :-
DISTRIBUTION OF PROPERTIES
Sr. Party & Particulars
No.
1 Claimants (Calcutta Group)
(i) Kamala Cottage, Property No.6 at Juhu, Mumbai (Property at sr. no.5)
(i) Property No.29/1 at Kanpur known as Kamla Tower ( Property at sr. no.1),
(ii) Property No.22/134 at Kanpur known as JK Kothi ( Property at sr. no.2),
(iii) Property No.11 Cants, Kanpur known as Ganga Kuti ( Property at sr. no.3),
(iv) Property No.6 at Cantt, Kanpur (Property at sr. no.4),
(v) Property No.20/193, Chatai Mohal, Kanpur ( Property at sr. no.9)
And receive INR 22.71 crores from the Calcutta Group.
(i) Property No.37, Kanpur known as Kamla Retreat ( Property at sr. no.6),
(ii) Property No.88/473, Hiraman Purva at Kanpur (Property at sr. no.7),
(iii) Property No.80/80 at Kanpur known as Oil Mills (lands) (Property at sr. no.8),
(iv) Property No.20/131, Patkapur, Kanpur ( Property at sr. no.10)
And receive INR 23.40 crores from the Calcutta Group.
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2 The Calcutta Group, the Bombay Group and the Kanpur
Group were all members of the Singhania family that was carrying on
business under the name and style of "M/s. J.K. Bankers" (Juggilal
Kamlapat Bankers), a partnership firm. Considerable immovable
properties were brought into the partnership firm.
3 In 1987, by way of a family settlement, the partnership
firm was dissolved and a Deed of Dissolution was executed by all the
parties. The parties agreed to distribute the immovable properties in
specie free from encumbrances as provided in the Deed of Partnership
dated 21st February, 1980. The distribution was to be completed as
soon as possible and the parties were to strive to accomplish the same
by 31st May, 1987. The properties are as under :-
"1. Property No.29/1 at Kanpur known as Kamla Tower
2. Property No.22/134 at Kanpur known as JK Kothi
3. Property No.11 Cants, Kanpur known as Ganga Kuti
4. Property No.6 at Cantt, Kanpur
5. Property No.6 at Juhu, Mumbai
6. Property No.37, Kanpur known as Kamla Retreat
7. Property No.88/473, Hiraman Purwa at Kanpur
8. Property No.80/80 at Kanpur known as Oil Mills (lands)
9. Property No.20/193, Chatai Mohal, Kanpur
10. Property No.20/131, Patkapur, Kanpur
11. Property No.360, Harish Ganj, Kanpur
12. Property No.363, Harish Ganj, Kanpur
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13. Property No.361, Harish Ganj, Kanpur
14. Property No.14/128, M.G. Marg, Kanpur
15. Property No.80/71, Cooper Ganj, Kanpur"
4 Even though the distribution was to take place as far as
possible by 31st May, 1987, the parties could not agree to the manner
of distribution of the partnership assets. Actions were commenced and
finally the Arbitrator came to be appointed pursuant to an order dated
4th April, 2006 passed by the Supreme Court of India. This happened
19 years after the firm was dissolved.
5 By the said award, the Ld. Arbitrator has ordered and
directed the partition and distribution of the various immovable
properties of M/s. J.K. Bankers as per the chart given above. In order
to do so, the Ld. Arbitrator has grouped the members of the Singhania
family, for the purposes of the dispute, into three groups, i.e., Calcutta
Group, Kanpur Group and Bombay Group.
6 As per the Award, the Calcutta Group were to receive vacant
and free from encumbrance the Juhu property (Serial No 5 to the list of
properties in Paragraph 26 of the Award) from the Bombay group.
Against receiving the Juhu property, the Calcutta group was directed to
bring into the pool for the family a sum of Rs. 46,11,00,000/-. Out of
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the said amount, The Calcutta group was to pay a sum of
Rs. 22.71 crores to the Kanpur group and a sum of Rs. 23.40 crores to
the Bombay group for the purpose of equalizing the Calcutta group's
share.
7 The Award was challenged under S.34 of The Arbitration &
Conciliation Act, 1996 (The Act) by both the Bombay and Kanpur
groups. By a common order dated 1 October 2009 the challenge was
dismissed. Thereafter appeals were preferred under S.37 of The Act by
both Kanpur and Bombay Groups. The appeals were dismissed by a
common Order dated 8 March 2013. The challenge to the award
stopped here.
8 Thereafter, as per the demand notice dated 26 August 2014
received from the Stamp authorities in Mumbai, the Calcutta group
paid the stamp duty amount on 28 August 2014 and subsequently the
Award was registered on 11 November 2014. All three groups were
represented before the Stamp authorities. A letter from the Calcutta
group's Advocates dated 24 November 2014 was sent to both the
groups enclosing the demand notice and requesting them to implement
the Award. Though lengthy correspondence was exchanged, the
Bombay group has only recently (during the pendency of this execution
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application) initiated steps, i.e., filed for execution of the award in
Kanpur with regard to execution of the Kanpur properties.
9 Some of the relevant portions of the Award are set out
herein for the sake of convenience :
19 ... Thus it is clear ............. In fairness to Counsel it must be
stated that it was not argued that the group to whom a property
would be allotted would not be entitled to get vacant possession and
free from encumbrance....
26. Accordingly I partition the properties as follows:
(a) The Claimants are allotted the property at Sr. No.5 i.e. Kamala
cottage, Property No.6 at Juhu, Mumbai. As the market value of
this property is fixed at Rs. 89.66 crs. and each group is entitled to
assets worth Rs. 43,55,00,000/- the Claimants will have to
bring into' the pool of the family, in the manner set out hereafter, a
sum of Rs 46,11,00,000/-. This then will have to be distributed
amongst the other two groups as per their entitlement.
(b) Respondents 1 to 9 are allotted the following properties at
the prices mentioned below:
(i) Property at Sr. No. 1 ...
(ii) Property at Sr. No.2 ..
(iii) Property at Sr. No.3..
(iv) Property at Sr. No.4 ...
(v) Property at Sr. No.9....
Thus properties worth Rs. 20.84 crs. are allotted to
Respondents 1 to 9. ........ they will, in addition to the above,
receive a sum of Rs. 22.71 crs. .... which has to be brought
in by the Claimants. They will receive this amount only
against delivery of vacant possession, free from encumbrances,
of all the properties allotted to Respondents 10 to 16. In other
words it will not be open to them to receive a part of this sum of Rs.
22.71 crs. on the ground that they have handed over vacant
possession of some of the properties.
(c) Respondents 10 to 16 are allotted the following properties at the
prices mentioned below
(1.i..i) Property at Sr. No. 6....
(1.i..ii) Property at Sr. No. 7...
(1.i.iii) Property at Sr. No.8 ...
(1.i.iv) Property at Sr. No.10...
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Thus Respondents 10 to 16 are allotted properties worth Rs 20.15 crs.
As they are entitled to assets worth Rs. 43,55,00,000/- they will, in
addition to the above, receive a sum of Rs. 23.40 crs which has to be
paid by the Claimants. They will receive this amount only on handing
over vacant possession, free from encumbrance, of the Juhu property
to the Claimants.
27. Respondents 1 to 9 are in possession of the properties at Kanpur,
respondents 1 to 9 are directed to vacate and/or get vacated the
property at Sr.6, the portion of the property at Sr. No.8 which is
possession of J.K. Oil Mills & the property at Sr. No.10 at Kanpur and
hand over vacant possession of the same, free from encumbrances to
respondents 10 to 16 within a period of 6 months from today.
Clarified that the properties at sr. nos.7 & 8 (not in possession of J.K.
Oil Mills) are not to be handed over free from encumbrances but are to
be handed over on "as is where is basis". As these properties stand
partitioned and allocated to respondents 10 to 16 by this award,
respondents 10 to 16 will be entitled to have their names, or the name
of such other person as they nominate, mutated in the record of rights
on the basis of this award. The claimants and the respondents shall
immediately jointly write to all tenants that they must attorn tenancy
to respondents 10 to 16. All parties are directed to execute such
writings or documents and do all such acts as are required for the
purposes of having these properties mutated into the names of
respondents 10 to 16 or such other person as they nominate.
29. It must be mentioned that the 6 months period is granted as
during submissions, on a query from the Tribunal, it was stated on
behalf of the parties that they would require 6 months to vacate. As
the period appears to be reasonable the parties are granted this time to
vacate or get vacated the properties. It is however clarified that by this
Award the properties already stand partitioned. From the date of this
Award the party to whom a property is allotted is the owner of that
property. Parties who have to vacate or get properties vacated i.e
Respondents 1 to 9 and Respondents 10 to 16 must confirm in
writing, within 1 month from today, that they will be vacating or
getting vacated the properties within the period of 6 months granted
to them. If no such written intimation is given, the party to whom the
property is allotted will be entitled to presume that possession will not
be handed over and can immediately thereafter apply for execution of
the Award. If no notice is given then the date of breach will be deemed
to be immediately on the period of 1 month, from the date of the
Award, getting over. If written notice is given acknowledging that
possession will be handed but at the end of six months possession is
not handed over the date. of breach will be immediately on the six
months period, from the date of the Award, getting over.
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30. As Parties are granted 6 months time to vacate, the amounts
receivable by them will only be received at the time they vacate the
property in their possession and/or all the properties in their
possession and hand them over free from encumbrance. Similarly the
sum of Rs. 46,11,00,000/- (Rs. 89.66 crs. less Claimants share of Rs.
43.55 crs.) which has to be brought in by the Claimants will become
payable on the date that the Claimants receives vacant possession of
the Juhu property. In other words the payment is to be against
possession of the property and/or possession has to be against
payment. Clarified that one group of Respondents not handing over
vacant possession will be no ground for another group not handing
over vacant possession. In the event of Claimants getting possession of
the Juhu property they will bring in the sum of Rs. 46,11,00,000/-
and Respondents 10 to 16 will to receive the sum of Rs.23.40 crs.
However if Respondents 1 to 9 have not handed over vacant possession
of all the properties to Respondents 10 to 16 then they will not be
entitled to receive the sum due to them till they hand over vacant
possession of all the properties. In that event the sum of Rs. 22.71 crs
will be kept in escrow .......... The amount will only be handed over
against vacant possession of all the properties allotted to Respondents
10 to 16 being delivered to them free from encumbrance...
31. By this Award the properties are partitioned and parties are
bound to hand over vacant possession free from encumbrance. Before
concluding it must be observed that the Supreme Court has inter-alia
observed as follows:
"It is thus seen that the above facts would clearly go to show that the
contesting Respondents Nos. 1-9 are not at all interested in any
conciliation, mediation or arbitration but only interested in enjoying
the bulk of the immovable properties of the firm and refusing to carry
out their obligations under and pursuant to the Deed of Dissolution by
permitting the distribution of properties in specie and free from
encumbrance as contemplated by the said Deed of Dissolution dated
26.03.1987 and the supplementary agreement dated 28.03.1987."
This tribunal has also noticed that parties in possession have shown
reluctance to hand over possession. As stated above Respondents 1 to 9
have without any justification claimed and are still claiming that they
are entitled to all properties in Kanpur and/or in any event the
properties at Sr. Nos. 1, 2, 3 & 6 must be allotted to them. They have
not been allotted property at Sr. No. 6. Respondents 10 to 16 have
also indicated reluctance to part with the Juhu property. However, it is
now hoped that the parties will heed the good advice tendered by the
Supreme Court............
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10 Thus, the Bombay and Kanpur groups had been given
6 months to vacate/get vacated the properties. Further, the two
Respondent Groups, i.e., the Bombay Group and the Kanpur Group
were to intimate within one month their written confirmation that they
would vacate within 6 months. If no written communication was
received, then the party to whom the property was allotted would be
entitled to presume that possession will not be handed over and can
immediately apply for execution. As the Calcutta group did not receive
any written intimation, either after the Calcutta group's letter dated
24.11.2014, they have filed this Execution Application bearing
No. 2006 of 2015.
11 The Calcutta Group has approached this court for execution
on the basis that the award provides for independent and separate
decrees and separate and independent execution of the rights and
obligations of the Calcutta Group. The Calcutta Group is seeking
vacant possession free from encumbrances of the Juhu property from
the Bombay Group against payment of Rs.22.71 crores and payment
of Rs.23.40 crores to Kanpur Group or in the alternative to deposit
Rs.23.40 crores in Escrow, if the Kanpur Group does not hand over
possession to the Bombay Group. The Bombay Group and the Kanpur
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Group are opposing the execution application on the grounds that :
(a) the award is a joint decree and must be executed as a
whole, it cannot be split into parts and allowed in separate executions;
(b) the obligations of the three groups under the award are
interlinked with reciprocal obligations towards each other and thus
cannot be separated.
(c) it was also submitted by the Bombay Group that the
Kanpur Group has not handed over the possession to Bombay Group
and if any obstruction is raised to the execution, the right of the
obstructionist will have to be decided in appropriate proceedings.
(d) the clarification contained in paragraph 30 of the
award contains a clarification only on the word "vacant possession"
but does not contain a clarification for free from encumbrances and
hence the Bombay Group is not obliged to hand over the Juhu
property to Calcutta Group unless they receive the Kanpur properties
free from encumbrances.
(e) the trigger point for handing over the Juhu property
has not arisen yet since the trigger point is only when the Kanpur
Group hands over the properties to the Bombay Group.
(f) the Calcutta Group ought to join the Bombay Group in
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the execution in Kanpur as the Bombay Group cannot give up the Juhu
property before they get their dues in Kanpur.
12 The Kanpur group also submitted that the Calcutta Group
has paid excess stamp duty without the consent from the Kanpur
Group and the six months period has not commenced for handing over
possession as per the award.
Before we proceed further, the settled position in law is
that the court's direction was to be complied with by rendering
satisfaction to all persons who are jointly interested in the decree.
However, there is an exception to this, in as much as, when distinct
shares of the decree holders are determined and known, payment to
one of the decree holders of his share satisfies the decree to that
extent. Strictly speaking such a decree is not a joint decree and a
decree holder, who is entitled to obtain satisfaction of his right can
claim it without reference to rights of the other decree holders.
(Hurrish Chunder Chowdry vs. Kali Sundari Debia 1 and Valchand
Gulabchand Shah vs. Manekbhai Hirachand Shah & Anr.2).
1. 10 Indian Appeal 4 (PC)
2. 1953 ILR 356
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14 In Jai Narain Ram Lundia vs. Kedar Nath Khetan3,
paragraphs 18 and 20 read as under :-
"18. When a decree impose obligations on both sides which are so
conditioned that performance by one is conditional on performance
by the other, execution will not be ordered unless the party seeking
execution not only offers to perform his side, but when objection is
raised, satisfies the executing court that he is in a position to do so.
Any other rule would have the effect of varying the conditions of the
decree : a thing that an executing court cannot do. There may of
course be decrees where the obligations imposed on each side are
distinct and severable and in such a case each party might well be left
to its own execution.
20. Fry on specific performance....... The basic principle in execution
that the executing court must take the decree as it stands and cannot
go behind it. If the decree says that on payment being made some
definite and specific thing is to be given to the other side, the
executing court cannot alter that and allow something else to be
substituted for the thing ordered to be given."
15 In Jagdish Dutt vs. Dharam Pal4, the court observed that a
joint decree can be executed as a whole since it is not divisible and it
can be executed in part only where the share of the decree holders are
defined and those shares can be predicted or the share is not in
dispute.
16 In Smt. Lalita Devi vs. Smt. Kamla Devi 5 Lalitadevi vs.
Smt. Kamladevi, it is observed that the law appears to be settled, that
in case of a joint decree where the shares of the parties are distinct or
separable even though some of the decree holders have transferred
3. AIR 1956 SC 359
4. AIR 1999 (3) SCC 644
5. 1994 SCC Online All 277
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their shares to the judgment debtor, the decree does not become
inexecutable as a whole but can be executed by one of the decree
holders under the provisions of Order 21, Rule 15 of Code of Civil
Procedure at least to the extent of the share of the decree holder.
17 In Ramesh Ch. Deb vs. Barinda Kr. Chakraborty6, the
court held that the execution can be commenced against some debtors
only and in part. In Sardar Madhavrao vs. Narayan Damodar7, the
court held that the decree holder can execute for his share only, else,
he would be obligated to undertake execution proceedings on behalf
of everyone else which may cause burden on the decree holder.
18 This being the settled position in law, let us see whether
the Calcutta Group can execute the decree in part so far as their share
is concerned. In the present case when one considers the award (the
decree) the decree/award, in favour of each of the group, viz.,
Calcutta Group or Kanpur Group or Bombay Group, is distinct and
severable and is executable distinctly and separately. The shares of
each of the decree holders are expressly apparent on the face of the
award.
6. AIR 1997 Gauhati 24
7. AIR 1960 66
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19 Strictly speaking in my view, though it is a common decree
in favour of each of the group, it cannot be construed as a joint decree
that it cannot be stated that the Calcutta Group is not entitled to
obtain satisfaction of its right without reference to the rights of the
Bombay Group or Kanpur Group. As the shares of the decree holders
are apparent on the face of the decree, there can be no objection to a
separate satisfaction of the individual decree holder towards his share.
The Calcutta Group has repeatedly tried to perform its obligations
starting from the letter dated 24th November, 2014 by offering to bring
in the money against receiving possession of the Juhu property. It is
not the case of anybody that the Calcutta Group is not ready and
willing to perform its obligations. The only obligation cast on the
Calcutta Group is to bring in money against receiving possession from
the Bombay Group. There is no vagueness to the rights and obligations
of the Calcutta Group under the award and the same is distinct from
and not interlinked with the rest of the obligations between the
Kanpur Group and Bombay Group. The Juhu property is defined and
the money sought to be brought in is also quantified.
Therefore, the Calcutta Group is entitled to press ahead
with the execution proceedings.
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20 It is the case of the Bombay Group that the award is a joint
decree and must be executed as a whole, it cannot be split up into
parts to allow separate executions as the obligations of the three
groups under the award are interlinked with reciprocal obligations
towards each other. Hence it cannot be separated. The counsel
Mr. Tulzapurkar relied upon Jagdish Dutt (supra) and Jai Narain Ram
Lundia (supra), which were also relied upon by Mr. Madon. Relying
on Jagdish Dutt (supra), Mr. Tulzapurkar submitted from paragraph 7
of the judgment that when a decree is passed in favour of a joint
family the same has to be treated as a decree in favour of all the
members of the joint family in which event it becomes a joint decree.
In Jai Narain Ram Lundia (supra), which was also relied upon by
Mr. Madon, Mr. Tulzapurkar read paragraphs 18 and 20 to show that
when obligations are interlinked as a family settlement separate
execution is not possible and in this case the obligations are
interlinked and cannot be executed in peace. The proposition
submitted by Mr. Tulzapurkar is the same that was submitted by
Mr. Madon and there can be no doubts about it but what is required
to be seen is whether in the present matter case the obligations are
interlinked. The answer is no.
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21 Mr. Tulzapurkar laid lot of emphasis on the observations
made by the Apex Court that a family dispute is of a special nature and
family settlement are governed by a special equity principle, where the
terms are fair and bonafide taking into account the well being of a
family. Mr. Tulzapurkar submitted that as held by the Apex Court the
families are governed by a special equity peculiar to themselves and
would be enforced if honestly made, the object of the arrangement is to
protect the family from long drawn litigation or perpetual strives which
mar the unity and solidarity of the family and create hatred and bad
blood between the various members of the family and the courts have,
therefore, leaned in favour of upholding a family arrangement instead
of disturbing the same. He submitted, therefore, only when Bombay
Group gets its share from Kanpur Group, that the Calcutta Group shall
get its share from the Bombay Group.
22 The three groups were distributing assets of a partnership
firm. The individual groups were like three individual joint families
who were partners in the firm. The award (decree) in the present case
cannot be treated as a joint decree. Even for a moment we consider
the award (decree) as joint, it is trite that even in the cases of joint
families it can be executed in part where the shares of the decree
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holders are defined or where the share is not in dispute. In view of the
separate rights and obligations of the Calcutta Group, the share of the
Calcutta Group can be executed independently. The Bombay Group
cannot withhold giving possession to the Calcutta Group on the basis
that they will not hand over possession of Juhu property unless they
get or acquire title to the Kanpur properties. That has to be dealt
between Bombay Group and Kanpur Group. In Jai Narain Ram Lundia
(supra) case also the Appellant - Jai Narain Ram Lundia sought to
execute the performance of a contract to sell certain shares in a
private limited company together with a five annas' share in
partnership firm called the Marwari Brothers. One of the defences put
up against the execution was that the partnership firm - Marwari
Brothers had been dissolved and was no longer in existence. The
Judgment Holder could not proceed because assets in a dissolved firm
were different from that of the share in a going partnership firm and no
modification had been sought. In the present case, there is no such
difficulty. The decree sought to be executed remains the same. There
are no interlinked obligations. If the Court allows the objection of the
Bombay group that they are not obliged to give possession of the Juhu
property till Kanpur gives them the Kanpur properties - the same would
be going behind the terms of the Award, as no where in the Award does
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it provide for this.
23 It was also submitted by the Bombay Group that if any
obstruction is raised to the execution, the right of the obstructionist
will have to be decided in appropriate proceedings in accordance with
law. The stand of the Bombay Group is that there opposition to hand
over possession to Calcutta Group of the Juhu property as the Kanpur
Group has not handed over possession to Bombay Group must be
considered by the executing court as a valid reason for them to not
hand over the Juhu property. Mr. Tulzapurkar relied upon N.S.S.
Narayana Sarma vs. Goldstone Exports (P) Ltd.8 to submit that an
obstructionist in possession can only be dispossessed in accordance
with law and he may not dispossessed until his rights are adjudicated
in proper proceedings. It is rather strange that the Bombay Group is
raising this issue. In the arbitration the rights of all the parties have
been determined and the award (decree) has been passed. As per the
award the Bombay Group has to vacate the Juhu property. There is no
right of the Bombay Group that has to be adjudicated in these
proceedings. When a decree holder complains of resistance to the
execution of a decree it is incumbent on the execution court to
8. AIR 2002 SCC 251
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adjudicate upon it. But while marking adjudication, the court is
obliged to determine only such question as may be arising between
the parties to a proceeding on such complaint and such questions must
be relevant to the adjudication of the complaint. The questions which
the executing court is obliged to determine is (a) the questions should
have legally arisen between the parties and (b) such questions must be
relevant for consideration and determination between the parties. For
example, third party, who questions the validity of a transfer made by
a decree holder to an assignee. But in this case the rights of the
Bombay Group and Calcutta Group are already determined or
decided. The Calcutta Group has a decree in their favour directing the
Bombay Group to hand over possession against the Calcutta Group
paying certain amounts to the Bombay Group. The Calcutta Group is
willing to make the payment. Therefore, there is nothing remaining in
the matter and the rights have been adjudicated. In the present case
the execution proceedings are pending and notice under Order 21
Rule 22 has been taken out for the purpose of dealing with the
objections.
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24 Paragraph 30 of the award provides "clarified that one
group of respondents not handing over vacant possession will be no
ground for another group not handing over vacant possession".
According to the Calcutta Group this clarification in paragraph 30
makes it clear that the Bombay Group cannot refuse to vacate the
Juhu property on the ground that the Kanpur Group has not handed
over to the Bombay Group properties in Kanpur. I am in agreement
with them. But according to Bombay Group the clarification contained
in paragraph 30 of the award contains a clarification only on the word
"vacant possession" but does not contain a clarification for free from
encumbrance.
25 Mr. Tulzapurkar submitted that the Arbitrator was
conscious of the wording of the clarification and deliberately phrased
it the way he did. Thus, the Bombay Group is not obliged to hand over
the Juhu property in Mumbai to the Calcutta Group unless they
receive the Kanpur properties free from encumbrance. According to
Mr. Tulzapurkar any other reading would be against the spirit of the
family settlement as a family settlement means all get their due
simultaneously. Mr. Tulzapurkar also relied upon Shiv Chander
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Kapoor vs. Amar Bose9. Relying on this judgment, Mr. Tulzapurkar
submitted that where there is an exception, it must be strictly
construed and the scope thereof should be limited to that content.
Mr. Tulzapurkar submitted that the clarification provided in paragraph
30 of the award is also an exception and not a clarification and hence
it must be construed strictly. According to Mr. Tulzapurkkar since it
only talks about vacant possession, the exception cannot be broadened
to read free from encumbrance in it and unless it is strictly interpreted
as an exception the Bombay Group and Kanpur Group would be
tempted to encumber the property and then hand it over.
Mr. Tulzapurkar also relied upon Century Textiles Industries Ltd. vs.
V. Deepak Jain and Anr.10 and submitted that the executing court
cannot go behind the decree, it must take the decree according to its
tenor; has no jurisdiction to widen its scope and is required to execute
the decree as made.
26 I am afraid, I cannot agree with this submission of
Mr. Tulzapurkar. One cannot read the award/decree in bits and pieces
or here and there. The award has to be read as a whole and
harmoniously for its true and correct meaning. If we have to accept
9. 1990 (1) SCC 234
10. 2009(5) SCC 634
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what Mr. Tulzapurkar is saying, then that sentence in paragraph 30
was not required at all. When reading the award (decree) as a whole
what each group is going to get and what each group is obliged to do
is expressly and distinctly identified. The Learned Arbitrator perhaps
envisaged such a situation that the Bombay Group may argue that
unless the Kanpur Group hands over the properties, the Bombay
Group is not obliged to hand over against payment. It is precisely for
that reason the Learned Arbitrator thought it fit to insert the sentence
in paragraph 30. Moreover it is just a clarification and is not the
operative part. It depends wholly on other paragraphs to find the
meaning. There is no need to substitute the word clarification with the
word exception. Moreover the Arbitrator in paragraph 19 has recorded
that the parties were in agreement with whomsoever had to receive
possession, had to receive property vacant and free from
encumbrances. It therefore, appears that the expression "possession",
"vacant possession" and "vacant possession free from encumbrances"
have been used loosely and synonymously throughout the award
except in case of properties at serial nos.7 & 8 which were not to be
delivered free from encumbrance, as could be seen from paragraph 27
of the award. Where it need not be delivered free from encumbrance,
the Arbitrator has spelt it out. Some of the paragraphs from which it
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so appears are paragraph 19, 20(c), 21 and 27 of the award which
read as under :-
"19... Thus it is clear ............. In fairness to Counsel it must be
stated that it was not argued that the group to whom a property
would be allotted would not be entitled to get vacant possession and
free from encumbrance....
20 (c) ... She also submitted that the Supreme Court in its judgment
dated 4 April 2006 has observed as follows -
If for any reason any of the defendants do not permit and comply with
the directions for getting vacant possession of any of the immovable
properties listed in items 1 to 13 of the Ex D to the plaint then the
same should be valued on basis of vacant possession and the plaintiffs
should be paid their share on the basis of the vacant possession by the
defendants..
21. ....Thus other members, who have had no possession for all these
years cannot now be denied allotment/ possession merely on the
ground that some other group is in possession. Distribution in specie
necessarily means that the group in possession and/ or control will
have to vacate or get vacated the properties.
27. Respondents 1 to 9 are in possession of the properties at Kanpur,
respondents 1 to 9 are directed to vacate and/or get vacated the
property at Sr.6, the portion of the property at Sr. No.8 which is
possession of J.K. Oil Mills & the property at Sr. No.10 at Kanpur and
hand over vacant possession of the same, free from encumbrances to
respondents 10 to 16 within a period of 6 months from today.
Clarified that the properties at sr. nos.7 & 8 (not in possession of J.K.
Oil Mills) are not to be handed over free from encumbrances but are to
be handed over on "as is where is basis". As these properties stand
partitioned and allocated to respondents 10 to 16 by this award,
respondents 10 to 16 will be entitled to have their names, or the name
of such other person as they nominate, mutated in the record of rights
on the basis of this award. The claimants and the respondents shall
immediately jointly write to all tenants that they must attorn tenancy
to respondents 10 to 16. All parties are directed to execute such
writings or documents and do all such acts as are required for the
purposes of having these properties mutated into the names of
respondents 10 to 16 or such other person as they nominate."
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27 Infact it should also be noted that any encumbrances on the
property had already been factored in the valuation. Moreover as per
the award, the properties stood partitioned and alloted to the groups so
named. Hence, it is not open to the erstwhile group owners to create
fresh encumbrances just because they happened to continue in
possession. The properties have been partitioned as on the date of the
award.
It was also submitted by Mr. Tulzapurkar that the Bombay
Group will be obliged to give up the Juhu property only at the time the
Kanpur Group hands over to them and as the Kanpur Group is yet to
hand over properties to the Bombay Group, the trigger point for
handing over of the Juhu property to Calcutta Group has not yet arisen.
29 The award provides for separate decrees. The parties/groups
are free to independently execute. If we have to assume a trigger point
so far as the execution by the Calcutta Group is concerned, it has to be
from the point the Calcutta Group agrees to bring in the money and
simultaneously the Bombay Group giving up possession of the Juhu
property. The counsel for the Calcutta Group also submitted that even if
the order of performance of reciprocal promises is not expressly stated,
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it shall be performed in that order which the nature of the transaction
requires. For this, the counsel relied upon Section 52 of the Contract
Act, 1872, which reads as under :-
"Section 52. Order of performance of reciprocal promises -
Where the order in which reciprocal promises are to be performed is
expressly fixed by the contract they shall be performed in that order;
and where the order is not expressly fixed by the contract, they shall be
performed in that order which the nature of transaction requires."
30 Thus, to the extent the Calcutta and Bombay Group have a
reciprocal obligation to each other, that will serve as the trigger. For it
is only when money comes into the pool, will the properties be
released.
31 Next point of objection from Mr. Tulzapurkar is that the
Calcutta Group ought to join the Bombay Group in the execution in
Kanpur as the Bombay Group cannot give up its Juhu property before
they receive their due in Kanpur. As I have already concluded that the
decree in its strict sense not a joint decree where obligations are
interlinked and each party is free to execute the decree at the place and
pace at which they wish to, I see no reason why the Calcutta Group,
which is not the recipient of any of the properties in Kanpur from the
Kanpur Group should join the Bombay Group in the execution in
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Kanpur. The Calcutta Group has to merely pay to the Kanpur Group
money once it receives its Juhu property or deposit it in court.
32 Mr. Tulzapurkar of course agreed that the present execution
application is maintainable since the Juhu property which has to go to
the Calcutta Group is situated within the jurisdiction of this court. Infact
one of the members of the Bombay Group family - Madhupati
Singhania, who is judgment debtor no.9 has filed an execution
application no.1913 of 2015 seeking execution of the award and
acknowledging that the decree has to necessarily be executed first in
Bombay. He is seeking protection for any money that may be paid by
the Calcutta Group for the Juhu property as he anticipates the rest of
the Bombay Group will take the money for themselves to his exclusion.
Of course judgment debtor no.9 - Madhupati Singhania is not entitled
to receive any monies separately since the Bombay Group has not come
back with its internal arrangement and dynamics. In Valchand
Gulabchand (supra), it was observed that under that rule..... but it
cannot compel one or more of the joint decree holders to levy execution
for a fraction of the decree. Nor can the Court at the instance of the
judgment debtor be asked to decide a dispute between the decree
holders inter se.... If the executing court is asked to launch upon such
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enquiry .........it would in effect be deciding a suit for partition between
the joint decree holders with reference to the property, which is the
subject matter of the decree primarily, and incidentally with regard to
the other property held jointly on the same tenure or relationship as the
property which is the subject matter of the decree.
33 As per Rule 2 and 2A of Order 21 of the CPC, payment in
court is good payment. Rule 2A provides provides that no payment or
adjustment shall be recorded at the instance of the judgment debtor
unless (a) the payment is made in the manner in rule 1. Rule 1 (1) (a)
specifically allows for all money payable under a decree to be paid by
deposit into the Court. As the execution for the Bombay property has
been applied for in this Hon'ble Court, the deposit of the money will be
made into the Court by the Calcutta Group on receiving vacant and free
from encumbrance possession of the Juhu property. There is no
obligation on the part of the Calcutta group with regards to protecting
specifically any amount towards Respondent No.11.
34 Mr. Tulzapurkar tried to distinguished Hurish Chunder
Chowdhury (supra) that was relied upon by the judgment creditor by
submitting that the facts of the said judgment were not pertaining to a
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family settlement, which have a special bearing. Mr. Tulzapurkar also
submitted that there was no reciprocity or reciprocal obligations in the
facts of the case. In my view, the judgment in Hurish Chunder
Chowdhury (supra) is a very clear on the proposition that separate
shares could be executed by individual decree holders.
35 Mr. Tulzapurkar also submitted that the Valchand
Gulabchand (supra) case relied upon by Mr. Madon has no bearing on
the facts of the present case as there was no reciprocity and the
obligations were only in one direction. In my view, this judgment
proceeded on the basis that it was a joint decree from the beginning. At
page 370 of the judgment it is stated as under :-
"As the decree was a joint decree, the darkhast application came to be
filed under the provisions of O.XXI R.15, which enables one or more of
the decree-holders to apply for execution of the whole decree for the
benefit of all the decree holders."
36 Mr. Madon had cited this judgment for the purpose of
demonstrating the well settled proposition that when separate shares
are ascertainable, decree holders can file execution application for their
own share and the fact that it is a family matter has no bearing and
even in a family matter it is possible.
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I agree with Mr. Madon because in Valchand Gulabchand
(supra) case it was held that ascertaining the respective shares of the
decree holders in a joint decree is foreign to the nature of the execution
proceedings. In the present case, there is no such difficulty as the
Calcutta Group is to bring in a fixed sum of money and receive
possession of the Juhu property in Mumbai.
37 Mr. Tulzapurkar laid lot of emphasis on the observations
made by the Apex Court that a family dispute is of a special nature and
family settlement are governed by a special equity principal, where the
terms are fair and bonafide taking into account the well being of a
family. Mr. Tulzapurkar submitted that as held by the Apex Court the
families are governed by a special equity peculiar to themselves and
would be enforced if honestly made, the object of the arrangement is to
protect the family from long drawn litigation or perpetual strives which
mar the unity and solidarity of the family and create hatred and bad
blood between the various members of the family and the courts have,
therefore, leaned in favour of upholding a family arrangement instead
of disturbing the same.
In this case however, it is the conduct of the Kanpur Group
and the Bombay Group that so much of bad blood has been spilt. The
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reluctance of the Bombay Group and Kanpur Group in handing over the
properties have been, inter alia, observed in paragraph 62 of the
judgment of the Apex Court11 while considering the civil appeal directed
against the final judgment and order dated 8th/9th June, 2004 passed by
the Division Bench of this Court in appeal no.440 of 1996 in arbitration
suit no.1904 of 1992. Paragraphs 62 & 63 of the said judgment have
been reproduced in the quotation in the next paragraph.
The Division Bench of this Court while considering the
appeal filed by the Bombay Group and the Kanpur Group challenging
the dismissal of the petitions filed by the Bombay Group and Kanpur
Group under Section 34 of the Arbitration and Conciliation Act, 1996 12
has in paragraphs 12 & 23 observed as under :-
"12. .................. The judgment of Supreme Court took note of the
fact that the assets of the partnership were largely with the Kanpur
group and an amicable settlement for the division of the assets had
not been arrived at for over eighteen years, since those who were
enjoying the assets in question were "merely trying to drag
proceedings endlessly forever and for another period of uninterrupted
enjoyment of the assets"2. The Supreme Court observed that it was
an admitted fact that the three branches of the Singhania family are
each entitled to a one third share in the immovable properties. In
regard to the conduct of the Kanpur group, the Supreme Court made
the following observations in the course of the judgment :
"62. it is thus seen that the above facts would clearly go
to show that the contesting Respondents 1-9 are not at
all interested in any conciliation, mediation or
arbitration but only interested in enjoying the bulk of the
11. (2006) 4 SCC 658
12. Appeal No.361/2010 and 505/2010 dated 8.3.2013
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immovable properties of the firm and refusing to carry
out their obligations under and pursuant to the said
deed of dissolution by permitting the distribution of the
said properties in specie and free from any encumbrance
as contemplated by the said deed of dissolution dated 26
March 1987 and the supplementary agreement dated 28
March 1987.
63. ... ... ... It has now come to a stage that the real
dispute has arisen between the parties. Already the
matter is pending adjudication from 1987 onwards,
Respondents 1-9 are admittedly in possession and
enjoyment of the valuable immovable properties
depriving the valuable rights of the appellants and the
other Respondents 10-20. We should not, therefore,
allow Respondents 1-9 to drag the proceedings any
further. The parties have to settle their disputes one day
or the other. In our opinion, the time has now come to
nominate a single arbitrator as provided under clause 13
of the agreement. It was argued that in case this Court
allows the appeal, the matter may be remitted to the
High Court for appointment of a single arbitrator and in
case the parties are unable to agree upon a single
arbitrator a panel of three arbitrators shall be appointed
as provided in the said agreement. We feel that such a
course, if adopted, would only enable the contesting
Respondents 1-9 to squat on the property and enjoy the
benefits, income, etc. arising therefrom."
"23. It was in this background that the arbitrator observed that in a
case as the present, it was impossible to exactly divide in specie the
immovable properties as that would mean a physical division of
some of the properties and that none of the parties had asked for
such a physical division. The arbitrator held that though the
distribution was to be in specie, there would have to be an
equalization of shares in terms of money. The shares of the parties
were not in dispute. Since the Juhu property was valued at Rs.89.66
crores, the party to whom the Juhu property was to be allotted,
would have to pay a sum of Rs.46.11 crores which would be
distributed between the other two groups considering 27 of 31
APP.361.2010 the value of the properties allotted to them. The
Kanpur group which was in possession of the Kanpur properties
desired to retain the entirety
of
the Kanpur properties but this
conduct, as we have noted earlier, has been the subject matter of
adverse comment in the judgment of the Supreme Court. The Juhu
property, as the arbitrator noted, could not be allotted to the
Mumbai group since it was not willing to accept the allotment of the
property at Rs.89.66 crores whereas the Kolkata group was willing
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to accept allotment at that price. The arbitrator, in our view, was
justified in holding that when one group was willing to accept the
allotment of the Juhu property at Rs.89.66 crores, there was no
justification for the Mumbai group to expect that the property be
allotted to them at a lower price. The submission of the Mumbai
group was that the Juhu property had been over valued by the
valuer. The arbitrator noted that if according to them the property
had been over valued, they ought to willingly accept their share from
the consideration of the Juhu property, which was offered by the
Kolkata group. Moreover, the proposal of the Mumbai group, as
noted earlier, was to allow bids and to allot properties to the highest
bidder. They cannot possibly have an objection to the Juhu property
being allotted at a much higher value than they were willing to
offer."
(emphasis supplied)
Even in the award at paragraph 31 it is observed as under :
31. By this Award the properties are partitioned and parties are
bound to hand over vacant possession free from encumbrance. Before
concluding it must be observed that the Supreme Court has inter-alia
observed as follows:
"It is thus seen that the above facts would clearly go to show that
the contesting Respondents Nos. 1-9 are not at all interested in
any conciliation, mediation or arbitration but only interested in
enjoying the bulk of the immovable properties of the firm and
refusing to carry out their obligations under and pursuant to the
Deed of Dissolution by permitting the distribution of properties in
specie and free from encumbrance as contemplated by the said Deed of
Dissolution dated 26.03.1987 and the supplementary agreement dated
28.03.1987."
This tribunal has also noticed that parties in possession have
shown reluctance to hand over possession. As stated above
Respondents 1 to 9 have without any justification claimed and are still
claiming that they are entitled to all properties in Kanpur and/or in
any event the properties at Sr. Nos. 1, 2, 3 & 6 must be allotted to
them. They have not been allotted property at Sr. No. 6. Respondents
10 to 16 have also indicated reluctance to part with the Juhu
property. However, it is now hoped that the parties will heed the good
advice tendered by the Supreme Court............
(emphasis supplied)
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40 Therefore, it is quite obvious that the Kanpur Group does
not want to part with the property and the Bombay Group, whose
attempt to retain the Juhu property at a lower price did not succeed
before the Arbitrator and challenging the award having been dismissed
are finding a very convenient alibi in the Kanpur Group. Both are
enjoying the assets in question. They are merely trying to drag
proceedings endlessly forever and for another period of uninterrupted
enjoyment of the assets.
It is true that family disputes have a different concept and
equity. The courts accept the litigating parties to bury their differences
which is essential for maintaining peace and harmony in the family. In
cases of family disputes and settlement, court do not take a technical
approach. But in this case the attitude and conduct of the parties have
changed, inter alia, in different directions even though the parties with
a good intention had entered into Deed of Dissolution to divide the
properties in equal measure in 1987. The parties are members of a
family descending from a common ancestor and they must sink their
disputes and differences, settle and resolve their conflicting claims once
and for all in order to buy peace of mind and bring about complete
harmony and goodwill in the family. The Bombay Group and Kanpur
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Group should strive to enforce a family arrangement and the award
(decree) honestly.
41 Mr. Kamdar, counsel appearing for respondent no.12
(Gautam Hari Singhania) adopted the submissions of Mr. Tulzapurkar.
Therefore, we do not have to dealt with that separately.
42 Mr. Andhyarujina, counsel appearing for the Kanpur Group,
at the outset adopted the submissions of Mr. Tulzapurkar. The main
thrust of course of the Kanpur Group was that the Calcutta Group has
paid excess stamp duty without consent from the Kanpur Group and
therefore, the Calcutta Group will be obliged to pay any additional
stamp duty that may be levied by the Uttar Pradesh Stamp Authorities.
As could be seen from the proceedings, all the parties were involved
with the proceedings before the Stamp authorities. It does not lie in the
mouth of the Respondent groups to now say that the stamp duty has
been paid without their consent when they were equally responsible for
following up the proceedings. Further, even after being informed way
back in 2014 that the stamp duty had been paid, they have not objected
or challenged the adjudication. It is not their case that less stamp duty
has been paid which would render the Award unenforceable. The
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Calcutta group has reserved their right to claim the proportionate share
in the same and the Kanpur group can deal with the same when their
right is exercised. This cannot possibly be a reason for halting these
execution proceedings. The Award provides for equal sharing of the
stamp duty. In the event the Uttar Pradesh authorities levy further duty
(despite Section 19A of the Indian Stamp Act, 1899 (as applicable in
Uttar Pradesh) which gives credit to the stamp paid in Maharashtra
already), the Calcutta group is bound by the Award and will have to act
in accordance with law.
43 It was also submitted by the Kanpur Group that the six
month period has not commenced for the handing over the possession
as per the Award. This submissions is preposterous. At the hearing
Mr. Andhyarujina admitted that the Kanpur Group had to vacate the
premises but the period of six months to vacate has not begun and
when the period begins is not clear. The dispute between the parties
has now been going on for almost thirty years. To raise an issue that
the 6 month period has not begun/ is not over is a desperate attempt to
clutch at straws. The Calcutta Group informed the Kanpur Group of the
stamping as far back as in November 2014. Thereafter the Kanpur
group has been served with the execution application which encloses a
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copy of the Award duly stamped all of which disclose the day of
stamping, assuming for the sake of argument the date of stamping is
the time from when the obligation for vacating arose. The 6 months
period is long over. The Kanpur group has not even complied with the
written confirmation as required under Paragraph 29 of the Award. In
absence of such a written confirmation that they are willing to vacate
the properties, they are in breach and have made themselves liable to
execution proceedings.
44 In the circumstances, the objections raised by the Bombay
and Kanpur Groups cannot be accepted though we see that family
settlements and family disputes have a special equity and attempt
should be made for the parties to live harmoniously. The conduct of the
Bombay Group and Kanpur Group in dragging this litigation over
30 years despite entering into a family settlement on 1987 smacks of
utter dishonesty and self-conteredness. Using their money power, the
Kanpur Group and Bombay Group (all are leading industrialists) have
for their selfish motives and greed only dragged on the litigation and
consumed precious judicial time of this court and also of the Apex
Court.
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45 I have observed in some other matters also that the Courts
should be alert in dealing with such speculative actions and shoot
down such bogus litigation at an early stage. This action of the
Bombay Group and Kanpur Group, it is quite obvious is inspired by
vexatious motives. I observe with regret the infliction of the ordeal
upon the Courts by parties like the Bombay Group and Kanpur Group
by presenting a case which was disingenuous or worse. It may be a
valuable contribution to the cause of justice if such speculative and
frivolous litigations are dealt with a tough hand. Substantial judicial
time will be saved if such parties are saddled with substantial costs so
that they would not continue the onslaught on precious judicial time.
In view of the past conduct of the Bombay Group and Kanpur Group
in engaging the Calcutta Group in contesting litigations which also
had a strong bearing in the Court's time, this is one of those cases
where substantial costs have to be imposed on the Bombay Group and
Kanpur Group.
46 Therefore, the notice is made absolute. The matter to
proceed for execution. The Bombay Group (with the exception of
Madhupati Singhania) and the Kanpur Group (each group) to pay a
sum of Rs. 10 lakhs each as costs to the Calcutta Group by way of
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cheque drawn in favour of the advocates on record for the Calcutta
Group. The Bombay Group (with the exception of Madhupati
Singhania) and the Kanpur Group (each group) also to pay a sum of
Rs.10 lakhs each to Maharashtra Legal Aid Services Authority. These
amounts to be paid within six weeks from today.
47 The Calcutta Group within six weeks to deposit the
amounts payable to the Bombay Group and the Kanpur Group with
the Prothonotary and Senior Master, High Court, Bombay, as
permitted under Order 21, Rule 1 of the Code of Civil Procedure. The
Prothonotary and Senior Master to invest these amounts in fixed
deposit with a nationalised bank for a minimum period of one year at
a time. Within eight weeks of the Calcutta Group depositing these
amounts with the Prothonotary and Senior Master, High Court,
Bombay, the Bombay Group to vacate the Juhu property. If the
Bombay Group fails to vacate, on the expiry of eight weeks period, the
Court Receiver to take actual physical possession of the Juhu property
and hand over the same to the Calcutta Group. He may, should the
need arise, even take police assistance to comply with these directions.
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48 As regards notice no.1653 of 2015, the same is deferred
until the applicants' share out of the Rs.23.40 crores payable to
Bombay Group is determined independently.
49 At this stage, the counsel for the Bombay Group seeks stay
of this order by a period of eight weeks.
50 I am not inclined to grant the stay as requested because the
Calcutta Group has been given six weeks to deposit and Bombay
Group has been given eight weeks to vacate the Bungalow after the
amount is deposited by the Calcutta Group.
51 It is clarified that if the Bombay Group gets a stay from the
Appeal Court, then in that case, liberty to the Calcutta Group to apply
for return of the amount deposited with the Prothonotary and Senior
Master, High Court, Bombay.
(K.R.SHRIRAM,J)
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